BAND, J.
Plaintiff brought this action against the City of Portland and the MacMarr Stores, Inc., to recover damages for personal injuries alleged to have been caused by the conjoint negligence of their servants in the operation of two motor trucks, on one of which plaintiff was riding when injured. The defendants separately answered, both setting up contributory negligence as a defense to the action. The cause was tried before a jury and resulted in a judgment for plaintiff for $12,000, from which the defendants have appealed.
At the close of the testimony, defendants separately moved for a directed verdict upon the ground that plaintiff’s own testimony affirmatively showed that he had been guilty of contributory negligence. The city also based its motion on the further ground that plaintiff had wholly failed to establish any liability upon the part of the city for the negligence of those in charge of its truck. The trial court overruled said motions, and the correctness of its rulings thereon presents the sole question for decision upon this appeal.
Plaintiff was injured about 5 o ’clock on the afternoon of November 21,1929, after he had completed his day’s work and while on his way home. On that day and for about seven years prior.thereto, he had been employed by the city Bureau of Water Works as a common laborer. In maintaining and operating its water system, the city was acting in a proprietary capacity and not as a governmental agency. On the day preceding his injury plaintiff had worked as one of a construction crew in digging a ditch and laying a water main for the city. After completing his day’s work he was about to take a street car when another city employee, who had been left in charge, by its foreman, of a small truck belonging to the city, invited him to ride on the truck. While proceeding thereon, plaintiff sat in a back seat facing the rear and rode with his left leg over the side of the truck with his left foot resting on the back fender and was so riding when injured. This truck was one operated by the city in making house to house connections and repairs of water mains and for other emergency purposes. As so operated, it had a crew of four men consisting of its foreman, a driver, a mechanic and a common laborer. This crew went from place to place wherever their services were required within the city and, while not
so employed, worked at construction work and had been so working with plaintiff on the day of the accident. When work for that day had ceased, the foreman rode home on another conveyance,leaving a vacant seat which the mechanic, who, in the absence of the foreman, was next in charge, invited plaintiff to take. The other three members rode on the truck with plaintiff.
As equipped and operated the truck carried four men, two in the cab and two who sat in the rear on a plank placed across the body of the truck and rode facing backward. Immediately in front of this plank and between it and the rear of the truck, the various tools, supplies and equipment used for emergency work were carried. The back and sides of the truck were open, the curtains being folded up.
Upon being invited to ride plaintiff got on the back seat on the right side of the truck and was riding facing the rear. Because of the tool box being immediately in front of him he placed his right leg on the box and, in order to brace himself, his left leg over the side of the truck, and was riding in that position at the time of the accident. If his leg had not been over the side of the truck he would not have been hurt. He explained his reason for riding in that position by testifying that, because of the box in front of him being higher than the seat and there being no handholds or other means of bracing himself, it was necessary to ride with his left foot on the rear fender to keep from falling out.
After the truck had reached Third street and while proceeding north thereon, it stopped at a point opposite the entrance of a warehouse belonging to the MacMarr Stores, Inc., and the driver sounded the horn twice. The truck then started up and proceeded to the opposite side of the street and, while being so driven,
plaintiff’s leg was caught between the tailboard of a MacMarr truck and the side of the city truck which resulted in cutting and bruising the flesh but not in breaking any bones of the leg.
Plaintiff’s testimony, as well as that of his witnesses, shows that the MacMarr truck had been driven south on Third street to a point opposite said entrance and had then been driven to the east curb of the street and stopped, where it was standing at an angle across the street preparatory to backing into said entrance; that it was a large truck 22 feet long and had its tailboard down, which projected about two feet beyond the back of the truck, and that, as the truck on which plaintiff was riding passed to the rear of the MacMarr truck that truck commenced to back causing the injuries complained of.
Plaintiff testified that he did not look around at any time or withdraw his leg from the position it was then in. His own evidence shows that the contact between the two trucks was very slight; that neither truck sustained any injury and that the only harm done was to himself; and that, if he had been riding with both legs inside the truck, he would not have been injured.
We think that the city was not liable for the injuries complained of. The rule of respondeat superior applies to a city but only when the relation of master and servant exists between the city and the tortfeasor, and the act of the one whose negligence caused the injury was within the scope of his duties and the duty in which he was then engaged was a private- corporate duty as distinguished from a governmental one. 6 Mc-Quillin on Municipal Corporations (2d Ed.) § 2823. It is clear from plaintiff’s testimony that at the time of the injury he was not engaged in the performance of
any duty owing to the city. It was not his duty to ride on the truck nor was it the duty of the city to furnish him with transportation. He could have gone home on the street car or found other means of transportation. The truck had not been provided by the city to transport him or any other person except the members of its own crew of which plaintiff was not one. There is no evidence that the city had ever expressly or impliedly authorized any member of this emergency crew to invite any person to ride thereon or to carry any one thereon except its own members and, since the city had conferred no such authority, plaintiff, while voluntarily riding thereon at the unauthorized invitation of those in charge thereof, was not the guest of the city but was the guest of those who had invited him to ride.
Monnet v. Ullman,
129 Or. 44 (276 P. 244). Here, as shown by plaintiff’s testimony, the driver of the city truck was an employee of the city and had authority to drive the truck but, since neither he nor any other person on the truck had authority to carry plaintiff, the city is not answerable to plaintiff for the negligence of the driver for any injuries sustained by plaintiff while voluntarily riding on the truck at the unauthorized invitation of those in charge thereof. While so riding on the truck for purposes of his own and without the knowledge or consent of the city, plaintiff assumed the risk of the driver’s negligence and he, and not the city, must bear the loss. The rule that a master, not present at the time, is not responsible for the negligence of his servants in permitting others to ride upon wagons or other like vehicles provided for the servants’ use in the employment of the master’s business, if done without his knowledge or consent, is well settled, because the granting of permission to ride by the driver is, under those circumstances, not
authorized by the master:
Schulwitz v. Delta Lumber Co.,
126 Mich. 559 (85 N. W. 1075);
Driscoll v. Scanlon,
165 Mass. 348 (43 N. E. 100, 52 Am. St. Rep. 523);
Dover v. Mayes Mfg. Co.,
157 N. C. 324 (72 S. E. 1067, 46 L. R. A. (N. S. 199). See also 2 Mechem on Agency (2d Ed.) § 1913, and other- cases there cited.
In this case the plaintiff does not stand in the same position as if he had been run over when crossing the street, for in that case the driver would have authority to drive, while in this he had no authority to carry a passenger. This distinction was recognized in
Monnet v. Ullman,
supra, and
Driscoll v. Scanlon,
supra.
. The contention made by plaintiff that if some emergency had arisen while he was riding whereby the crew of that particular truck had been called upon to render some service for the city, plaintiff himself might have been employed in the performance of such service, is wholly immaterial. There was no such emergency. The supposed contingency never happened. Plaintiff was not riding on the truck for that purpose but wholly for his own convenience. Again, it is not to be supposed that an emergency crew employed by the city to do emergency work, .which crew consisted of a foreman, a driver, a mechanic and a common laborer, when all but the foreman are present, would require the services of another common laborer or that the plaintiff could have done the work or taken the place of the foreman if an emergency had arisen. Hence, it follows that the motion of the city should have been sustained.
The further question of whether, under plaintiff’s own evidence and the admitted facts of his own case, the motions of both defendants should have been sustained because of plaintiff’s contributory negligence presents a matter of some difficulty.
Ordinarily the question of contributory negligence is for the jury and it is only when but one conclusion can reasonably be drawn from the undisputed facts in a case that it becomes a question of law for the court:
Butler v. McMinnville,
126 Or. 56 (268 P. 760, 59 A. L. R. 381);
Knight v. La Grande,
127 Or. 76 ( 271 P. 41, 61 A. L. R. 256). “When the evidence was given at the trial,” said Mr. Justice Gray in
Randall v. Baltimore & Ohio R. R. Co.,
109 U. S. 478 (35 S. Ct. 322, 27 L. Ed. 1003) “with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant.” “When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court”:
Grand Trunk Ry. Co. v. Ives,
144 U. S. 408, 417 (12 S. Ct. 679, 36 L. Ed. 485).
Negligence is the absence of care according to the circumstances. This definition of negligence was given by Willes, J., in
Vaughan v. Taff Vale Ry. Co.,
5 H. & N. 688, and has had the approval of many eminent judges and textwriters. See 1 Beven on Negligence (3d Ed., p. 9), and cases there cited. Under this definition the same act may be negligent or not negligent, wholly according to its circumstances, for as stated by Beven, “ it is not the act that connotes the negligence but the circumstances. ’ ’ As said by Bramwell, B., in
Degg v. Midland Ry. Co.,
1 H. & N. 781: “There is no absolute or intrinsic negligence; it is always relative to some
circumstance of time, place, or person.” See, also,
Grand Trunk Ry. Co. v. Ives,
supra, where the court said: “The terms ‘ordinary care,’ ‘reasonable prudence,’ and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one ease may, under different surroundings and circumstances, be gross negligence.”
In determining whether plaintiff was guilty of contributory negligence, the same rules are applicable to his acts and conduct as are applicable to those of the defendants. The care to be exercised by him is governed by the same principles which determine the negligence of the defendants. Each is bound to use ordinary care according to the circumstances and the care which both are bound to exercise varies with the apparent risk. The plaintiff may be negligent in exposing himself to known dangers or dangers which he should know: Jaggard on Torts, 962, and authorities there cited. The law contemplates that every person shall exercise ordinary care for his own protection against injury and, if he fails to exercise such care and such failure, concurring and cooperating with the actionable negligence of defendant, contributes to the injury complained of as a proximate cause, he is guilty of contributory negligence and cannot recover. When contributory negligence is set up as a defense to an action for injuries alleged to have been caused by the defendant’s negligence, it means any want of ordinary care on the part of the person injured (or on the part of another whose negligence is imputable to him), which combined and concurred with the defendant’s negligence, and contributed to the injury as a proximate cause thereof, and as an element without which the injury would not have occurred: Black’s Law
Dictionary (2d Ed.), subject negligence, and authorities there cited. The rule that contributory negligence is a bar to an action for personal injuries is based upon the well established principle of the law of torts that no one is entitled to recover an indemnity for an injury of which his own want of care was, either wholly or partially, the efficient cause: 3 Labatt’s Master and Servant (2d Ed.), § 1237. The application of this rule is limited to those cases where there is a casual connection between the plaintiff’s negligence and the injury. As said by Mr. Justice Field in
Little v. Hackett,
116 U. S. 366, 371 (68 S. Ct. 391, 29 L. Ed. 652):
“That one cannot recover damages for an injury to the commission of which he has directly contributed is a rule of established law and a principle of common justice. And it matters not whether that contribution consists in his participation in the direct cause of the injury, or in his omission of duties which, if performed, would have prevented it. If his fault, whether of omission or commission, has been the proximate cause of the injury, he is without remedy against one also in the wrong. It would seem that the converse of this doctrine should be accepted as sound — that when one has been injured by the wrongful act of another, to which he has in no respect contributed, he should be entitled to compensation in damages from the wrong-doer.”
The doctrine of contributory negligence, as developed by the English courts, has to a very large extent been approved and adopted by the courts of this country. The ease usually referred to as the first to definitely formulate this rule of law is
Butterfield v. Forrester,
11 East 60, decided in 1809. There the rule of law was laid down that, although there may have been negligence on the part of the plaintiff, yet, unless he might, by the exercise of ordinary care, have avoided the consequences of the defendant’s neg
ligence, lie is entitled to recover. In that case, the plaintiff, who was riding violently, rode against an obstruction in a public highway, wrongfully placed there by the defendant, and was injured. The accident happened at 8 o’clock in the evening in August when dusk was coming on, but the obstruction was still visible one hundred yards off. The jury was directed that if a person riding with reasonable and ordinary care could have seen and avoided the obstruction, and if they were satisfied that the plaintiff was riding along the street extremely hard and without ordinary care, they should find for the defendant, which they accordingly did. In refusing a rule for a new trial, Lord Ellenborough, C. J., said: “One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff. ’ ’
In discussing
Butterfield v. Forrester,
supra, the author of Pollock on Torts (13th Ed.), p. 482, after stating that the case is a good example of obvious fault on both sides, where the plaintiff’s damage was immediately due to his own want of care, then said: “It. was left to the jury whether the plaintiff, riding with reasonable and ordinary care, could have seen and avoided the obstruction; if they thought he could they were to find for the defendant; and they did so. The judge’s direction was affirmed on motion for a new trial. ‘ One person being in fault will not dispense with another’s using ordinary care for himself.’ Here it can hardly be said that the position of the pole across the road was not a proximate cause — surely it was a direct cause — of the fall. But it was not the whole proximate cause. The other and decisive cause which
concurred was the plaintiff’s failure to see and avoid the pole in his way.” The author then states, among others, three legal propositions and the authorities which sustain them as follows: “On the whole, then, if the plaintiff’s ‘fault, whether of omission or of commission, has been the proximate cause of the injury, he is without remedy against one also in the wrong.’ Little v. Hackett, (1866) 116 U. S. 366, 371; Butterfield v. Forrester, 11 East 60. On the other hand, if the defendant’s fault has been the proximate cause he is not excused merely by showing that the plaintiff’s fault at some earlier stage created the opportunity for the fault which was that cause. Radley v. L. & N. W. R. Co., 1 App. Ca. 754, 46 L. J. Ex. 573; Davies v. Mann, 10 M.
& W.
546. If it is not possible to say whether the plaintiff’s or the defendant’s negligence was the decisive cause of the damage, it may be said that the plaintiff cannot succeed because he has failed to prove that he has been injured by the defendant’s negligence. Per Lindley L. J., The Bernina, 12 P. D. 58, 59.”
The rule of law laid down in
Butterfield v. Forrester,
supra, was approved in
Bridge v. Grand Junction Ry. Co.,
3 M. & W. 244, where Parke, B., said: “The rule of law is laid down with perfect correctness in the case of Butterfield v. Forrester; and that rule is, that although there may have been negligence on the part of the plaintiff, yet, unless he might, by the exercise of ordinary care, have avoided the consequences of the defendant’s negligence, he is entitled to recover; if by ordinary care he might have avoided them, he is the author of his own wrong.” It is also approved in
Marriott v. Stanley,
1 M. & G. 568, and
Davies v. Mann,
10 M. & W. 546.
In
Davies v. Mann,
supra, the facts as set forth in the reported case are substantially as follows: The plaintiff, having fettered the forefeet of an ass belonging to him, turned it out onto a public highway, where at the time of the injury it was grazing on the off side of a road about eight yards wide. The defendant’s wagon, with a team of three horses, coming down a slight descent at what a witness termed “a smartish pace,” ran against the ass and knocked it down, inflicting injuries from which it died soon after. The ass was fettered at the time, and it was proved that the driver of the wagon was some little distance behind the "horses. It was alleged in the declaration that the ass was lawfully in the highway and that allegation was not denied by the defendants. The jury was directed that “if they thought that the accident might have been avoided by the exercise of ordinary care on the part of the driver, to find for the plaintiff,” which they did. The Court of Exchequer sustained the direction to the jury and Baron Parke, in delivering the principal opinion in the case, said:
“This subject was fully considered by this court in the case of Bridge v. The Grand Junction Railway Co., where, as appears to me, the correct rule is laid down concerning negligence; namely, ¡that the negligence which is to preclude a plaintiff from recovering in an action of this nature, must be such as that he could, by ordinary care, have avoided the consequences of the defendant’s negligence. * * * The judge simply told the jury that the mere fact of negligence on the part of the plaintiff in leaving his donkey on the public highway, was no answer to the action, unless the donkey’s being there was the immediate cause of the injury; and that, if they were of opinion that it was caused by the fault of the defendant’s servant in driving too fast, or, which is the same thing, at a smartish pace, the mere fact of putting the ass upon the road
■would not bar tbe plaintiff of his action. All that is perfectly correct; for, although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road.”
In
Tuff v. Warman,
5 C. B. N. S. 585, the facts as stated in 1 Beven on Negligence, p. 151, were as follows : Plaintiff’s barge was proceeding down the river with two men on board, one at the helm, but with no look-out. A steamer on her right side, and taking such precautions that, if the barge had done the same, would have avoided any collision, ran into the barge and caused the injuries for which redress was sought. The jury found, on the direction of the judge, that the defendant directly caused the injury. Objection was taken that the judge left to the jury whether the plaintiff, by his negligence, “directly” contributed to the misfortune; and it was contended for the defendants that whether he directly or indirectly contributed was immaterial, if he contributed to it by his negligence at all. In giving the judgment of the Exchequer Chamber, Wightman, J., said:
“It appears to us that the proper question for the jury in this case, and indeed in all others of the like kind, is, whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary and common care and caution, that, but for such negligence or want of ordinary care and caution on his part, the misfortune would not have happened. In the first case the plaintiff would be entitled to recover, in the latter not; as, but for his own fault, the
misfortune would not have happened. Mere negligence or want of ordinary care or caution would not, however, disentitle him to recover, unless it were such, that, but for that negligence or want of ordinary care and caution the misfortune would not have happened ; nor, if the defendant might, by the exercise of care on his part, have avoided the consequences of the neglect or carelessness of the plaintiff.”
The law was definitely settled in the English courts in
Radley v. London and North Western Ry. Co.,
L. R. 9 Ex. 71, on an appeal to the House of Lords by Lord Penzance, who announced the law of contributory negligence in two propositions as follows: “The first proposition is a general one, to this effect, that the plaintiff in an action for negligence cannot succeed if it is found by the jury that he has himself been guilty of any negligence or want of ordinary care which contributed to cause the accident. But there is another proposition equally well established, and it is a qualification upon the first — namely, that though the plaintiff may have been guilty of negligence, and although that negligence may in fact have contributed to the accident, yet, if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff’s negligence will not excuse him.” The facts of that case as stated by Beven were as follows: “The plaintiffs, colliery owners, had a siding adjoining the defendants’ line, which was crossed by a bridge, and on which the defendants were in the habit of conveying the plaintiffs’ trucks from their line, the plaintiffs removing them thence as they thought fit. The defendants brought to the plaintiffs’ siding and left there, after working hours, trucks of the plaintiffs, one of which was loaded with a broken truck to such
a height that it would not pass under the bridge. More than twenty-four hours afterwards, but before work was resumed at plaintiffs’ works, the defendants, after dark, pushed onto the siding other trucks of the plaintiffs, and pushed the loaded trucks up to the bridge, by which means the train of trucks was arrested. The defendants’ servants, not being aware of the cause of the obstruction, pushed the train of trucks forward with so much force that the loaded trucks knocked down the bridge.”
In
Clayards v. Dethick,
12 Q. B. 439, Coleridge, J., said: “If a man is lying drunk on the road, another is not negligently to drive over him. If that happened, the drunkenness would have made the man liable to the injury, but would not have occasioned the injury. ’ ’
In discussing the results of these cases to which we have referred, Beven says in his work on Negligence, supra, p. 155, that:
“Much of the difficulty in fixing the meaning of contributory negligence arises from the ambiguous use of the phrase, ‘contributing to the injury.’ This may indicate any of the whole set of antecedents necessary to produce the effect, or that one of them which marks their final completion and the actual calling into being of the effect. The
causa sine qua non
of an accident is not that on which depends the legal imputability of the accident. The liability depends not on that, but on the
causa efficiens.
In fact the same test is applicable to the ascertaining what negligence contributes to an injury, as we have already applied to the ascertaining negligence itself. We must trace the negligent consequences to the last responsible agent, who, either seeing the negligent consequences or negligently refusing to see them, has put into motion the force by which the injury was produced. To constitute a responsible agent there must be an accountable human will.”
We have stated the principles enunciated by the English courts because they have been approved and followed generally by the courts of this country and are, we think, the law in this state. It is true that
Davies v. Mann,
supra, has been subject to some criticism by some of the leading textwriters. See the discussion by William Schofield in 3 Harvard Law Review, p.- 267. But, as that learned writer states, the case has been cited without criticism by our courts generally, although he says that the question whether the defendant could, by the use of due care, avoid the consequences of the plaintiff’s negligence, has been ignored in many of the cases, citing it as an authority.
The qualification of the general rule, as stated by Lord Penzance in the Radley case, was approved in
Inland and Seaboard Coasting Co. v. Tolson,
139 U. S. 551 (11 S. Ct. 653, 35 L. Ed. 270), where Mr. Justice Gray said: “The qualification of the general rule, as thus stated, is supported by decisions of high authority, and was applicable to the case on trial. ’ ’ The qualification pointed out by Lord Penzance was again approved by the Supreme Court of the United States in
Grand Trunk By. Co. v. Ives,
supra, where that court declared that the generally accepted and most reasonable rule of law applicable to actions in which the defense is contributory negligence may be thus stated: “Although the defendant’s negligence may have been the primary cause of the injury complained of, yet an action for such injury cannot be maintained, if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured ; subject to this qualification, which has grown up in recent years, that the contributory negligence of the party injured will not defeat the action, if it be shown
that defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party’s negligence.”
In the discussion made by the writer in 3 Harvard Law Review concerning the case of
Davies v. Mann
and other English cases, he says: “The results of these several cases, and of the discussion thus far, may be summarized thus: The general rule of contributory negligence, founded largely, if not wholly, upon considerations of public policy, is this: that if a plaintiff has been guilty of any negligence which contributed proximately to the injury, he cannot recover. But it is the duty of both plaintiff and defendant to use due care to avoid the consequences of each other’s negligence. If the defendant alone can avoid the accident by the use of due care, and does not, the plaintiff may recover. If the plaintiff alone can avoid it, and does not, he cannot recover. If both can avoid it, neither can recover. If neither can avoid it, the general rule applies, and the plaintiff cannot recover.”
Professor Burdick in the fourth edition of his work on torts, at p. 522, says: “The present view is that contributory negligence which defeats the plaintiff is negligence on his part, which is a substantial cause of his harm. In a leading English case, the following-charge to the jury was. held to contain an accurate statement of the true doctrine: ‘If both parties were equally to blame, and the accident was the result of their joint negligence, the plaintiff could not be entitled to recover; that, if the negligence or default of the plaintiff was in any degree the proximate cause of the damage, he could not recover, however great may have been the negligence of the defendant; but that, if the negligence of the plaintiff was only remotely connected with the accident, then the question was
whether the defendant might not, by the exercise of ordinary care, have avoided it’.” “Speaking generally, if a man does or omits to do an act which is likely to result in damage, under all the circumstances known. and which ought to be known to him at the time, his act or omission is the legal cause of that damage.” 3 Harvard Law Review, p. 268.
The question of whether, under plaintiff’s own showing, he was guilty of such contributory negligence as to bar his right to recover as a matter of law must be determined from the circumstances existing at and just prior to the time of the accident. Ordinarily, danger would not be likely to result to one riding in an open truck with one foot resting on a rear fender and, as a general rule, if an injury did result therer from, the question of whether the person so riding was negligent would be for the jury.
While a- person is not bound to anticipate that another person’s negligence will cause him injury unless the circumstances are such that an ordinarily prudent person knows, or, by the exercise of ordinary care, would know, that danger is liable to result from such other person’s negligence, yet, where a person riding negligently, or otherwise, knows, or, by the exercise of ordinary care, would know, that some one else is negligent and that such negligence is liable to cause him harm and fails to exercise the care of an ordinarily prudent person to protect himself from such threatened danger, then if he sustains injury because of his failure to exercise ordinary care he cannot recover as a matter of law.
Neither of the drivers of whom plaintiff complains knew that he was riding with one of his legs over the side of the truck, or that he was in peril because thereof. They, therefore, had no opportunity to avoid
injuring him by the exercise of ordinary care upon their part after having discovered his peril. Hence, since plaintiff would have known of his peril had he looked and could have avoided the consequences of defendants’ negligence, his failure was the proximate cause of his injury. According to his testimony, just before the accident happened the truck on which he was riding had stopped and signalled twice and had then started ahead, crossing to the other side of the street. From this he knew or should have known that there was some vehicle or other object ahead which the driver of the truck was attempting to pass and, since the truck had turned to the left, he knew that this object was on his side of the street and that, in passing it, his leg in its then position would be between the object and the side of the truck on which he was riding. Knowing this, if he had looked, as he should have done, he would have seen the MacMarr truck and would have known of the danger of having his leg on the outside of the truck while passing the MacMarr truck. Knowing this, he neither looked around nor made any inquiry or effort to ascertain what it was that the truck was passing. By the exercise of the slightest effort on his part, he could have withdrawn his leg and, if he had done so, his own testimony shows that he would not have been injured. This clearly shows an absence of ordinary care for his own safety under the circumstances as testified to by him. Without looking or making any effort to protect himself, he intrusted his safety wholly to the driver of the truck on which he was riding. Had he merely looked to his left, he could have seen the other truck and, by withdrawing his leg, have avoided the negligence of the drivers of the two trucks. Under these circumstances, we think his own want of ordi
nary care and precaution was the cause of his injury and that, therefore, he was the author of his own wrong. If the impact between the two trucks had been such that he would have been injured whether his legs were inside or outside the truck, then his negligence would not have been the cause of the injury but, under the evidence testified to by him, his negligence was a proximate and direct cause of the injury.
In passing the MacMarr truck, there was only a small jolt. The impact was so slight that no harm was done to either truck and the only thing injured was plaintiff’s leg and that would not have been injured had it been in a proper position on the truck. The impact was not sufficient to do anything more than cut his leg and bruise the flesh, for none of the bones of the leg were broken. These facts are admitted by the plaintiff and appear as a part of his own case. Hence, while the question of contributory negligence is ordinarily for the jury, here the facts themselves not being ambiguous or capable of two interpretations, the question was one for the court. Plaintiff, through his own fault, combined with the negligence of others, sustained an injury. Under such circumstances, comparative negligence being unknown to our law, plaintiff could not be entitled to recover as both plaintiff and the defendants were to blame, no matter how great the negligence of the defendants may have been.
For these reasons, we are compelled to reverse the judgment and remand the cause to the court below with directions to dismiss the action, and it is so ordered.
Bean, C. J., Rossman and Kelly, JJ., concur.
Former opinion reversed and case affirmed on rehearing December 30, 1932